Theresa Brown v. Mystic Seaport Museum, Inc. (2011)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (No. 134)

FACTS

On August 11, 2009, the plaintiff, Theresa Brown, filed a two-count revised complaint against the defendants, Mystic Seaport Museum, Inc. (MSM) and The Wood Company (Wood), for negligence, after the plaintiff allegedly fell on a staircase that was owned, maintained and/or controlled by one or both of the defendants.   Wood filed a motion for summary judgment and accompanying memorandum of law with several exhibits on September 22, 2010.   The plaintiff filed an objection to the motion for summary judgment with exhibits on November 5, 2010.   Wood filed a reply brief on January 24, 2011.

DISCUSSION

“Practice Book § 17–49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.   In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  (Internal quotation marks omitted.)  Sherman v. Ronco, 294 Conn. 548, 553–54, 985 A.2d 1042 (2010).  “In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist.”  (Internal quotation marks omitted.)  Maltas v. Maltas, 298 Conn. 354, 365, 2 A.3d 902 (2010).  “ ‘Issue of fact’ encompasses not only evidentiary facts in issue but also questions as to how the trier would characterize such evidentiary facts and what inferences and conclusions it would draw from them.”  United Oil Co. v. Urban Development Commission, 158 Conn. 364, 379, 260 A.2d 596 (1969).

In the present case, Wood argues that it did not own, control or maintain the staircase from which the plaintiff claims to have slipped and fallen.   Further, Wood claims there is no evidence that it had actual or constructive notice of the claimed defect, a necessary element for a claim based on premises liability.   The plaintiff counters that the terms of the contract between Wood and MSM create a genuine issue of material fact as to which defendant retained possession and/or control over the staircase in question.   The plaintiff also provides deposition testimony as evidence that a question of fact exists as to whether Wood had notice of the accumulation of sand, which was the alleged cause of the plaintiff's fall.

“Retention of control is essentially a matter of intention to be determined in the light of all the significant circumstances ․ The word control has no legal or technical meaning distinct from that given in its popular acceptation ․ and refers to the power or authority to manage, superintend, direct or oversee ․ Unless it is definitely expressed in the lease, the circumstances of the particular case determine whether the lessor has reserved control of the premises or whether they were under the exclusive dominion of the tenant, and it becomes a question of fact and is a matter of intention in the light of all the significant and attendant facts which bear on the issue.”  (Emphasis in original;  internal quotation marks omitted.)   Fiorelli v. Gorsky, 120 Conn.App. 298, 308, 991 A.2d 1105, cert. denied, 298 Conn. 933, 10 A.3d 517 (2010).

The two defendants in this case entered into a contract whereby Wood would lease certain spaces on MSM's property to operate restaurants and provide food service for MSM's invitees.   The plaintiff's injury allegedly occurred on a staircase that is in front of one such restaurant, known as the Galley.   After a review of the agreement between Wood and MSM, it is clear that a question of fact exists that is material to the plaintiff's negligence claim.   A trier of fact could reasonably reach different conclusions as to who retained control over the area in question.   Paragraph five, section C of the contract states in relevant part:  “Wood shall maintain the Facilities and Portables and all Food Service equipment in a safe and presentable operating condition.”  “Facilities” is defined in paragraph one, section C as “The Galley, the Tavern, and the Seamen's Inne.” Paragraph fifteen, section A states in relevant part:  “Wood shall maintain and keep in clean condition all walls, ceilings, floor or stairs if the wall, ceiling, floor or stairs or portion thereof needing repair has been altered by Wood or if the need for repair is the result of any wrongful act or omission of Wood ․ With respect to the Galley/Front of the house, and the Tavern, Wood shall be responsible for wiping tables and chairs, removing trash to a location determined by MSM, and maintaining all services areas in the restaurant and the adjacent patio.   Wood shall also be responsible to maintain the space within a ten (10) foot perimeter around all Food Service buildings and portables.”

Meanwhile, paragraph fourteen, section F states:  “MSM shall repair any walls, ceilings, floors and stairs within the Facilities, provided that the wall, ceiling, floor or stairs or portion thereof needing repair has not been altered by Wood and further provided that the need for repair is not the result of any wrongful act or omission of Wood.” This language demonstrates a clear issue of material fact that is central to the plaintiff's lawsuit, namely whether MSM has retained control over the stairwell outside the Galley restaurant and whether the scope of Wood's control of the perimeter can reasonably be read to include the stairwell at issue.   The defendant has not met its burden of proving the nonexistence of any material facts and thus summary judgment is inappropriate.

Finally, the defendant's second ground in its summary judgment motion is that “the plaintiff can offer no evidence to establish that the defendant had actual or constructive notice of the claimed defect.”   At this stage in the proceedings, the plaintiff is under no obligation to prove that the defendant had actual or constructive notice.  “On a motion by the defendant for summary judgment the burden is on [the] defendant to negate each claim as framed by the complaint ․ It necessarily follows that it is only [o]nce [the] defendant's burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial.”  (Internal quotation marks omitted.)  Baldwin v. Curtis, 105 Conn.App. 844, 850–51, 939 A.2d 1249 (2008).   The defendant has not met its initial burden of proving the absence of an issue of fact with respect to notice of the allegedly defective condition.   Based on the deposition testimonies of the plaintiff, her son who witnessed the accident and a security guard for MSM, as well as a photograph of the area in dispute, questions of fact exist as to the cause and circumstances that allegedly created the defective condition.

CONCLUSION

For the foregoing reasons, the defendant's motion for summary judgment is hereby denied.

Martin, J.

Martin, Robert A., J.